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8. Animadverting upon the first appellate Court's Judgment and decree, this second appeal is focussed by the defendants on various grounds; the gist and kernel of them would inter-alia run thus:

The Judgment and decree of the first appellate Court is against law and weight of evidence as suo- motu the doctrine of "non-est factum" has been ushered in. There was no issue framed in that regard by the trial Court. In the absence of any prayer to get set aside the power deed, the first appellate Court was not justified in deciding the case in favour of the plaintiffs. The prayer to get set aside Exs.B1 and B2 was also not made in the plaint. The suit was barred by limitation. Accordingly, they prayed for setting aside the Judgment and decree of the first appellate Court and for the dismissal of the original suit.

9. At the time of admitting this second appeal, my learned Predecessor framed the following substantial question of law:

"1. Whether the lower appellate court is right in law in invoking the Doctrine of "non-est Factum" in the absence of any pleading or proof, especially when no issue in this regard was raised before the Trial Court?
2. Whether the Lower Appellate Court has not misdirected itself in applying the Doctrine of "non-est Factum", and holding Exhibit A-1 void and not voidable, when the disparity alleged is only regarding the contents of the documents, in the absence of any prayer to set aside the document?

14. Ex facie and prima facie, it is pellucid and palpable that the trial Court did not frame any issue relating to the applicability of the doctrine of "non-est factum" in the facts and circumstances of this case. In my considered opinion, the plaint does not disclose in very many words, the facts that would be sufficient to constitute "non-est factum".

15. The learned counsel for the plaintiffs by placing reliance on the following excerpt from the plaint, "The power detained in items (i) and (ii) above were included by 2nd defendant without the knowledge and consent of plaintiffs taking advantage of their illiteracy. There is a mis-representation also character and contents of the document".

19. The second defendant examined himself as D.W.3, who is the central figure in this case, as against whom, the plaintiffs focussed their attack. Surprisingly during cross examination, nothing has been attributed as against him to the effect that he defrauded the plaintiffs. The facts constituting the plea of non-est factum were not put to D.W.3 in cross examination. Such a failure is not a mere pocucurante or insignificant flaw in cross examining P.W.1, but a material one. The purpose of cross-examining a witness itself is to enable the witness to explain adverse situation, which the other side tries to place reliance on. Here, the plaintiffs have not chosen to cross examine the second defendant relating to the alleged fraud and misrepresentation committed by him as against the plaintiffs. While cross examining D.W.4, the scribe, the cross-examination was not focussed to the effect that the scribe in collusion with the second defendant interpolated or inserted or incorporated fraudulently clauses relating to empowering the second defendant to sell the land on behalf of the plaintiffs. As such, while cross-examining D.W.3, the second defendant and D.W.4, the scribe, the facts that would constitute the plea of non-est factum were not put to them and in such a case, the plaintiffs cannot press into service the theory of non-est factum and the first appellate Court miserably misdirected itself in accepting the case of the plaintiffs in toto and in reversing the Judgment and decree of the trial Court.